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Canadian Gay Couples Celebrate Decisive Court Victory
by Rich Peters
365Gay.com Newscenter
Western Canada Bureau Chief
May 1, 2003 1:23 p.m. ET/+5GMT/-3PT
Updated 6:01 p.m. ET/+5GMT/-3PT
(Vancouver, British Columbia) Eight lesbian and gay couples in British Columbia who had been denied marriage licenses are rejoicing over a provincial Court of Appeal decision Thursday that says the federal government's definition of marriage is unconstitutional.
The court reversed a lower court ruling that said the issue had to be decided by Parliament and not the courts. The appeals court declared that preventing gays and lesbians from marrying is illegal.
"Well of course, I'm ecstatic," said Joy Masuhara, who with her partner Jane Hamilton was one of the plaintiffs in the case.
"I can't believe how happy I am. For me personally, it means I can do what I've wanted to do for the last 10 years and that's marry my partner. In the wider context, it's highly symbolic that the decision has come down on our side," she told reporters."
In it's written decision the court gave the federal government until July 12, 2004 to change the law which defines marriage as "the union of one man and one woman to the exclusion of all others.
The court said that appropriate remedy is for Parliament to reformulate the common law definition of marriage to mean: "the lawful union of two persons to the exclusion of all others".
Writing for the court, Madam Justice Jo-Ann Prowse said "that the common law definition of marriage contravenes the Charter (Bill of Rights) and it cannot be justified in contemporary Canadian society.''
Joe Arvay, one of the plaintiffs' lawyers, said he was delighted with the ruling.
"It gives gay and lesbian couples full personhood in Canadian law," Arvay said.
The ruling is the third time that a senior provincial court has ruled the existing law unconstitutional. Courts in Ontario and Quebec also ordered the government to rewrite the law. The federal government is appealing those rulings. It has 60 days to appeal the BC ruling.
In Ottawa,the federal justice minister says he's in no rush to decide on an appeal.
Martin Cauchon points out the B.C. decision goes in the same direction as two other rulings rendered in Ontario and Quebec.
And he notes the decisions are all based on Canada's Charter of Rights and Freedoms.
But Cauchon says he wants to take a close look at the rulings before the government takes a position on gay and lesbian marriage.
The government in its appeal of the Ontario court ruling said last week that denying same-sex couples the right to marry is not discriminatory. (story)
"The unique opposite-sex nature of marriage does not imply that the human dignity of those other relationships is diminished," Roslyn Levine, a lawyer for the federal Attorney General argued.
Rulings on the appeals in Ontario and Quebec are expected this summer.
The executive director of Canada's national LGBT rights organization, Egale, said it is time for the government to do the right thing.
"The time has come," Gilles Marchildon told 365Gay.com. "There is a consistency now in the upper courts, and unanimity on the remedy...marriage. Not a "separate but equal remedy, not civil unions, but equal marriage."
"The clock is ticking," Marchildon said.
A House of Commons committee has been hearing its own arguments on the marriage issue. The committee was asked to look into the issue of gay marriage following the ruling in Ontario. It has been traveling across the country and is expected to issue a report to the Minister of Justice later this month.
The committee heard from gay and lesbian couples who wish to marry, along with deputations from conservative religious groups. Some of the presentations drew accusations from LGBT groups that the committee had degenerated into a forum for hate. (story)
The question of gay marriage has divided the ruling Liberals. The party is in the midst of a leadership race to find a successor to Prime Minister Jean Chretien. While many backbenchers oppose marriage rights for gays, all three contenders for the party's top job are now on record as not opposing the idea, although the front runner, former finance minister Paul Martin says he would prefer it if the courts ordered parliament to amend the law. (story).
A spokesperson for Martin did not return calls from 365Gay.com Thursday.
With the Liberals holding a parliamentary majority the person selected by the party as its new leader in November will automatically become Prime Minister.
While the man expected to be Prime Minister next fall was not commenting, the opposition New Democrats were.
Leader Jack Layton called the ruling "great news."
Layton said he doesn't think people who want to get married, "no matter their sex, should have to go to court to get permission."
He said Canadians "shouldn't have to add judicial fees to the cost of getting hitched."
©365Gay.com Ltd® 2003